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Bill 139 : Focusing on the New Tribunal is to Miss the Forest for the Trees - A Lesson in Legislative Misdirection - It’s the Appeal Provisions Which Count (Part 1 of a Longer Conversation about Bill 139)

Sep 18, 2017

I have just finished reading a lengthy, passionate and well reasoned critique of the shortcomings of the Local Planning Appeal Tribunal which Bill 139 proposes to replace the Ontario Municipal Board (OMB), Ontario’s favourite municipal planning punching bag.  The author, Peter Howden, is a well respected, retired judge and former OMB member. Mr. Howden is not an unabashed apologist for the OMB. He is plainly aware of and has written about the shortcomings of the OMB and, in fact, has offered useful ideas for reform.

My concern about the Howden critique (and that of some other commentators) is that it presumes that the new legislative regime under Bill 139 will provide for meaningful appeals to the Tribunal. It is my view that this is unlikely to be the case if the amendments to the appeal provisions in the present Planning Act, proposed in Bill 139, come into force.

In other words, to focus on the shortcomings of the proposed Tribunal (and its likely processes) is to miss a key fact.  It hardly matters what kind of hearings, written or oral, with or without the filing of evidence, with or without cross examination etc. if you cannot ever get a meaningful appeal to the Tribunal in the first place.

The Legislative misdirection, whether intended or not, comes from the provisions of Bill 139 which “repeal and replace” the OMB with the Local Planning Appeal Tribunal which, it is clear, will operate in a significantly different manner than the OMB (all of which is discussed in the Howden article). These provisions are red meat for those who hate the OMB and is fly-paper for lawyers who are irresistibly drawn to debating the minutiae of how decision-making tribunals work - how they dispense procedural fairness - in determining the appeals before it. But this debate  presumes that the Tribunal will have meaningful appeals to determine.

To further feed this misdirection, Bill 139 establishes the Local Planning Appeal Support Centre, which is intended to provide support for “eligible persons” (read ratepayers) in engaging matters before the Tribunal. The presumption which the Government wants to foster is that there will be meaningful appeals for such “eligible persons” to pursue or oppose.

And, lastly, to complete the misdirection, Bill 139 amends the rights of appeal in the Planning Act in regard to official plans, zoning by-laws, interim control by-laws and draft plans of subdivision through the use of language that precludes meaningful appeals, while making it appear as if this is not the case..

How the amendments to the appeal provisions of the Planning Act will obviate meaningful appeals (in most cases) will be discussed in future Parts of this conversation about Bill 139.

[Note: The writer would be heartened to receive feedback on this blog.]

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Related Blog Posts:

Bill 139 Referred to Standing Committee on Social Policy

Bill 139 Second Reading

Bill 139 Submission by Advocates for Effective OMB Reform

WOOD BULLetin - Proposed Bill 139 - Government of Ontario's Proposed Changes to Overhaul the Land Use Planning Appeal System and Conserve Watersheds

Bill 139 Proposed Planning Act Amendments - Comparison Table

Province Introduces New Legislation to Overhaul Ontario's Land Use Planning Appeal System

 

Author(s): Dennis Wood

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